Neutral Citation: 2002 ONFSCDRS 103
FSCO A01-000442
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NGAR LEE ALICE POON
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
REASONS FOR DECISION
Before:
Fred Sampliner
Heard:
February 19, 20, 21, 2002, at the offices of the Financial Services Commission of Ontario in Toronto.
Written submissions were received on March 21, 2002.
Appearances:
Harvey S. Consky and Sue Chen for Ms. Poon
Greg Houser for State Farm Mutual Automobile Insurance Company
Issues:
The Applicant, Ngar Lee Alice Poon, was injured in a motor vehicle accident on April 3, 1999. State Farm Mutual Automobile Insurance Company ("State Farm") rejected payment for Mrs. Poon's acupuncture treatment plans and reports, acupuncture treatment, and transportation expenses to the sessions, submitted under the Schedule.1 The parties did not resolve the disputes through mediation, and Ms. Poon applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
The issues in this hearing are:
Is Mrs. Poon entitled to reimbursement for expenses of her acupuncture treatment?
Is Mrs. Poon entitled to reimbursement for the cost of her acupuncturist's treatment plans and reports?
Is Mrs. Poon entitled to reimbursement for her transportation expenses?
Is either party entitled to their expenses of the arbitration?
Result:
Mrs. Poon is entitled to a portion of the expense for her acupuncture treatment.
Mrs. Poon is not entitled to the cost for treatment plans, but is entitled to be reimbursed for a portion of the acupuncture reports.
Mrs. Poon is not entitled to transportation expenses.
Neither party shall have their expenses of the arbitration.
EVIDENCE AND ANALYSIS:
Background:
Mrs. Ngar Le Alice Lee Poon, a 50- year-old housewife, was a front seat passenger at the time her sister's automobile was rear-ended while stopped. Mrs. Poon was shaken back and forth in the accident, seen briefly at the emergency department of a local hospital that day and followed up with her family physician 10 days later. He referred Mrs. Poon for physiotherapy treatment of her whiplash injuries and left-arm numbness. The physiotherapy clinic discharged Mrs. Poon after her initial eight weeks because she failed to attend regularly, but recommended further investigation.
The main subject matter of this claim is Mrs. Poon's 51 acupuncture treatment sessions with Mr. Ming Fai Chan between July and September 1999. The bill shows $5,737.50 for treatment of Mrs. Poon's neck, back, waist, knee, shoulders and elbows, plus $500 for 4 reports, totalling $6,674.13 including GST. Mrs. Poon also submitted receipts to State Farm for round-trip transportation by private automobile between her home and Mr. Chan's clinic, totalling $267.
The Accident Injuries:
It is a well-established rule at FSCO that Mrs. Poon must prove on a balance of probabilities that the accident caused or significantly contributed to the symptoms that Mr. Chan treated. State Farm argues it is not responsible for these expenses because Mrs. Poon suffered some, if not, all of her complaints before the accident, and that therefore the accident did not cause or significantly contribute to her condition.
Mrs. Poon admitted in her evidence that she was taking hypertension medicine at the time of the accident. She also stated that she had bilateral knee arthritis and periodic pain or numbness in her left arm before the accident. The evidence is undisputed that a portion of Mr. Chan's treatment relate to these conditions.
Mrs. Poon denied suffering significant neck or shoulder problems prior to the accident. While there is mention in the clinical notes of Mrs. Poon's family physician during the two months prior to the accident that she had neck and chest complaints, her family doctor gave evidence that she was specifically sent for physiotherapy treatment to address her left arm/hand numbness, caused by a nerve entrapment, not for her neck or shoulders.
There is no evidence that Mrs. Poon received treatment before the accident to alleviate neck or shoulder complaints. I find that Mrs. Poon's neck and shoulder pain were not particularly significant in comparison to her hypertension, arthritic knee and left arm numbness prior to the accident.
Records from Mrs. Poon's first visit to her family physician after the accident state that her neck and left arm numbness grew worse and she had developed spasm in the muscles of one shoulder. Her symptoms continued through July and August 1999, extending to both shoulders. Dr. Heung Wing Li is one of the family physicians who consulted with Mrs. Poon at the health clinic she attended. His evidence at the hearing is that the accident caused Mrs. Poon's neck and shoulder problems, but not her other symptoms.
Dr. Li was aware that Mrs. Poon's knee degeneration was first diagnosed in 1992 x-rays, and he readily agreed that her complaints both before and after the accident are consistent with her pre-accident knee arthritis. Similarly, the clinic's records and its initial report to State Farm show that Mrs. Poon experienced numbness in her left arm before the accident, and again Dr. Li's was clear that the accident did not cause or significantly exacerbate Mrs. Poon's left arm problems either.
Dr. Li is quite familiar with Mrs. Poon's medical condition from both he and his colleagues' lengthy history of treating her before and after the accident. He gave balanced testimony and opinion by accepting the facts and conclusions that were supported through the clinic's records, even where it did not benefit his patient. I find Dr. Li's evidence and opinion reliable.
Dr. Barry Malcolm is an orthopaedic surgeon who examined Mrs. Poon for State Farm, two months after her acupuncture treatments concluded. In his report, Dr. Malcolm found that Mrs. Poon suffered no disability or impairment from an objective muscular/skeletal standpoint. He suggested that Mrs. Poon resume all normal household and personal activities by continuing her self-directed exercises.
Dr. Malcolm did not see Mrs. Poon until she had already received the therapeutic benefit of both physiotherapy and acupuncture, and admittedly recovered a great deal of her physical function. He did not have information about Mrs. Poon's pre-accident state and therefore did not distinguish her accident injuries from her pre-existing ailments. The weight of Dr. Malcolm's opinion is reduced because at the time of his examination Mrs. Poon had for the most part recovered and he also provides no insight to causation.
Based on Dr. Li's opinion, I find that the accident did not cause or significantly contribute to the condition of Mrs. Poon's knees, her left arm or low back. The post-accident records of Mrs. Poon's family medical clinic convincingly establish that she sustained a whiplash injury, developed bilateral shoulder pain and increased neck symptoms, and support Dr. Li's opinion that these symptoms were either caused or greatly aggravated by this accident. On a balance of probabilities, it is my finding that the accident significantly contributed to Mrs. Poon's neck tightness/pain and caused her shoulder complaints.
Treatment of the Accident Injuries:
Mrs. Poon must establish that her acupuncture treatment was reasonable and necessary.2 State Farm's experts do not provide an opinion considering the appropriate eligibility test for treatment.
The physiotherapist that State Farm sent to Mrs. Poon's home supports her evidence that she had some functional problems as a result of the accident. The therapist's May 1999 report states that Mrs. Poon was restricted in performing some of her housekeeping duties. She recommended that Mrs. Poon employ pacing strategies and that State Farm purchase some assistive devices for her.
The physiotherapist had an accurate and direct opportunity to appraise Mrs. Poon's limitations in her home. Approximately a month after the accident, Mrs. Poon's injuries were more significant than at the time of Dr. Malcolm's examination in November 1999 when she had received treatment and recovered to a larger extent. I accept the physiotherapist's report as confirmation of Mrs. Poon's evidence.
I find that as a result of her accident injuries, Mrs. Poon suffered increased fatigue and pain during her housework. Pain or symptom relief and amelioration of an injured insured person's disability are both acceptable goals for compensable treatment under the Schedule3
State Farm funded Mrs. Poon's initial physiotherapy treatment, her evidence being that the hot water therapy for her neck/shoulders provided relief, but that she experienced increased pain from the physical exercises. Mrs. Poon's evidence that she found greater symptomatic relief from Mr. Ming Fai Chan's traditional Chinese therapy is supported by the testimony of Dr. Li and his clinic's records.
No expert evidence contradicts Dr. Li's opinion on the acupuncture or undermines in any meaningful way Mrs. Poon's testimony that she benefited from the treatment. In fact, Dr. Malcolm's opinion that Mrs. Poon had fully recovered after completing the acupuncture treatments is easily characterized as consistent with Mrs. Poon, and supports her position of its benefit.
Both Mr. Chan's testimony and his initial July 1999 report establish that he was not aware of Mrs. Poon's significant pre-accident problems with her left arm and knees. He admittedly treated and billed State Farm for all her ailments as if they were accident-related. While I find that the acupuncture was necessary to help alleviate Mrs. Poon's neck and shoulder pain, I rely on Dr. Li's opinion to find that the acupuncture for her knees, waist/low back and left arm are unconnected to the accident, and therefore not necessary.
The evidence supports State Farm's argument that Mr. Chan billed above the customary rate for the acupuncture treatments. Mr. Chan has been a qualified member of the Chinese Medicine and Acupuncture Association of Canada (Association) since 1995, and it suggests that each acupuncture visit should cost between $45 and $65.
Mr. Chan testified that he is a physician and a member of one of the regulated health professions in Ontario. No evidence contradicts Mr. Chan's professional experience or credentials as an acupuncturist, but nothing supports his contention he is a member of a regulated health discipline in Ontario. The evidence does not support Mr. Chan's $112.50 per visit professional charge, and I find it is not reasonable.
I accept Mr. Chan's credentials as a skilled and experienced expert in Chinese medicine and acupuncture. I find that the Association's $65 upper limit is a reasonable fee for calculation of Mrs. Poon's treatment.
According to Mr. Chan's bills, he treated Mrs. Poon's neck, back, waist, knee, shoulders and elbows. Since the accident caused or significantly contributed to only one half of the treatment areas (neck, back, shoulders), I find that Mrs. Poon is entitled to (51 sessions x $32.50/visit = $1,657.50 plus $116.03 GST) $1,773.53 for her acupuncture treatments.
Treatment Plans:
Mrs. Poon claims $75 for each of Mr. Chan's two treatment plans under section 24 of the Schedule. She submits evidence from Mr. Chan that treatment plans for other insured people were accepted and paid by State Farm, maintaining this waives the requirement that a member of a regulated health profession complete the plans.4
In my opinion, the statutory requirement would be severely undermined if it was accepted that non-regulated health workers could complete treatment plans as if they were members of a regulated health profession. The clear language of the Schedule restricts the authority to complete treatment plans to health professionals who are subject to the regulatory standards of this province's law, and I reject Mrs. Poon's argument.
I find that Mr. Chan is not a member of a regulated health profession under Ontario law, and that he is not authorized to complete treatment plans. Consequently, Mrs. Poon is not entitled to reimbursement for Mr. Chan's two treatment plans.
Acupuncture Treatment Reports:
Mrs. Poon claims $150 and $200 for two reports from Mr. Chan, under section 24 of the Schedule. She must prove that these reports are necessary and reasonable expenses, over State Farm's allegation that Mrs. Poon should not recover them because they inaccurately report her medical history/symptoms, and are not useful.
Mr. Chan's inflation of his professional credentials and admission that he knew about, but did not report, Mrs. Poon's pre-accident knee and left arm complaints demonstrates his willingness to change facts. His opinion is not reliable.
However, Mr. Chan's lack of reporting reliability does not detract from the efficacy of his acupuncture treatments. No evidence contradicts Mrs. Poon that the acupuncture treatment relieved her symptoms better than the physiotherapy sessions, and Mr. Chan's reports were useful to establish that treatment. I find that Mr. Chan's reports are a necessary expense.
The initial July 1999 report contains sufficient detail about Mrs. Poon's history, specific physical problems and treatment to justify the $150 fee as reasonable. The more abbreviated August 1999 interim report contains little additional information to shed light on Mrs. Poon's condition or treatment progress. Allowing $50 for the second report, I find that Mrs. Poon is entitled to a total of $200 for both of Mr. Chan's reports.
Transportation Expenses:
Mrs. Poon claims that the $267 she paid for a company named Well-Care to drive her to and from her appointments with Mr. Chan was a necessary and reasonable expense.5 The parties did not refer to the Commissioner's suggested criteria, but I accept them as indicators of whether the service was necessary.6
Mrs. Poon testified that she has a valid Ontario drivering permit, but does not often drive. Her husband has a car and was not working during a portion of her treatment. The evidence does not establish that Mrs. Poon did not have an automobile available for her use and she could not drive to her acupuncture appointments.
Mrs. Poon testified that her hypertension caused her confusion when taking public transit, and she sometimes boarded the wrong bus. I accept that Mrs. Poon's hypertension may have periodically created some barriers to her taking the bus, but I am not satisfied that she was unable to walk to Mr. Chan's office.
The distance between Mrs. Poon's home and Mr. Chan's office is 3.3 kilometres. Mrs. Poon had no answer when asked why she was able to walk approximately three kilometres to her physiotherapy appointments, and not the slightly longer distance to her acupuncturist.
Mrs. Poon has not established that she could not use her husband's car or walk to her appointments. I therefore find that it was not reasonable or practical for Mrs. Poon to use taxis to her acupuncture appointments, and that she is not entitled to her claimed $267 transportation expenses.
EXPENSES:
Mrs. Poon's partial success on this claim must be weighed against her participation in the considerable waste of Commission time during the three hearing days. My admonitions to each representative to cease their irrelevant repetitive questioning and overly technical objections during the arbitration went unheeded. In my opinion, the hearing could have been completed in half the time.
Considering the Expense Regulation criteria,7 I am not prepared to award either party any of their arbitration expenses.
June 27, 2002
Fred Sampliner
Arbitrator
Date
Neutral Citation: 2002 ONFSCDRS 103
FSCO A01-000442
FINANCIAL SERVICES COMMISSION OF ONTARIO
BETWEEN:
NGAR LEE ALICE POON
Applicant
and
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:
Mrs. Poon's claims for transportation expenses, Mr. Chan's treatment plans and her expenses of the arbitration process are dismissed.
State Farm shall pay Mrs. Poon $200 for Mr. Chan's reports and $1,773.53 for her acupuncture treatments, together with any applicable interest under section 46 of the Schedule.
June 27, 2002
Fred Sampliner
Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule —Accidents on or after November 1, 1996, Ontario Regulation 403/96, as amended by Ontario Regulations 462/96, 505/96, 551/96, 303/98 and 114/00.
- Subsections 14(2) and 15(2) of the Schedule.
- Violi and General Accident Assurance Company of Canada, (FSCO A98-000670, August 20, 1999)
- Schedule subsections 38(2), 38(3), and 2(1) "member of a health profession" means a member of a College as defined in the Regulated Health Professions Act, 1991.
- Subsections 14(2)(g) and 15(5)(k) of the Schedule
- Commissioner's Guideline No. 6/96, OIC 10/19/96
- Ontario Regulation 664, R.R.O. 1990, as amended by Ontario Regulation 464/96, under the Insurance Act